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Held v General Dental Council [2015] EWHC 669 (Admin)

Mr Held ["the Appellant"] brought an appeal under s.29 of the Dentists Act 1984 against the decision of the Professional Conduct Committee ["PCC"] of the General Dental Council ["GDC"] respondent.

The PCC determined that the Appellant's fitness to practise was impaired by reason of his misconduct, namely his failure to obtain professional indemnity insurance during the period of 31 May to 11 July 2013. The PCC determined that the appropriate sanction was erasure of the Appellant's name from the register of dentists. The Appellant appealed the decision on four grounds. Additionally, in support of his appeal, the Appellant sought to adduce new evidence in the form of witness statements from 9 of the 26 patients of whom the PCC had found that he had treated during the relevant period.

The appeal failed on all grounds and was subsequently dismissed.

Facts

The GDC alleged that between 31 May and 11 July 2013 the Appellant had treated 41 patients at his dental surgery whilst not being covered by professional indemnity insurance. The GDC demonstrated this by the fact that applications had been made to the NHS Dental Services for payment of the treatment provided to these 41 patients.

The Appellant did not attend the PCC hearing on the 27 and 29 May 2014 but provided a letter on 26 May 2014 which contained his defence.

In particular the Appellant commented that 15 of the 41 patient claims that had been submitted to the NHS Dentals Services were made in error and had subsequently been withdrawn. This was put to Mr Viles, the sole witness, who confirmed that this was correct. The PCC therefore decided to discount the allegation with regard to those 15 patients but found the allegation proved in relation to the remaining 26 patients.

The PCC determined that the appropriate sanction in the circumstances was erasure.

The Appellant appealed on the grounds that:

'(a) The hearing was conducted contrary to the rules of natural justice in that Mr Held's failure to attend and give oral evidence counted against him.

(b) The PCC failed to deal with evidential points raised in Mr Held's defence letter by failing to properly challenge Mr Viles and instead dismissing Mr Held's version of events as unreliable.

(c) The PCC's decision was not safe given that the PCC had agreed to discount the case in relation to 15 withdrawn patients.

(d) The sanction was unduly severe and a lesser sanction was appropriate.'

Additionally, in support of his appeal, the Appellant sought to adduce new evidence in the form of witness statements from 9 of the 26 patients of whom the PCC had found that he had treated during the relevant period.

Judgment

Handed down by Judge Stephen Davies.

Ground (a): Davies J stated that the PCC could not be faulted for its decision to proceed in absence of the Appellant and additionally could not be criticised for not treating the Appellant's email and letter of defence as a request for an adjournment.

McDaid v Nursing Midwifery Council [2013] EWCH 586 (Admin) was considered with regards to the overall fairness of proceedings which are conducted in the absence of the defendant. Davies J adopted the conclusion of Elder J in (McDaid) that there is an obligation on the tribunal to ensure that the hearing is as fair as circumstances permit which includes a duty “during the giving of evidence by the [regulator’s] witnesses to take reasonable steps to expose weaknesses in the [regulator’s] case advanced by the regulator and to make such points on behalf of the absent defendant as the evidence permitted”. Davies J also adopted Eder J's conclusion that this duty does not include a duty to cross-examine witnesses in the same way as a defendant. [14]

Ground (b): Davies J highlights in his judgment that the PCC made express reference to the 'gist' of the Appellant's version of events and that, "it is not incumbent on a tribunal to make extensive reference in its determination to each and every individual fact and matter raised by a defendant." [34]

Ground (c): Davies J concluded that there was no logical inconsistency in the PCC's decision to discount the allegation in relation to 15 patients but continue with the remaining 26. The discounting of the 15 patients did not indicate acceptance of the Appellant's defence. He states that the PCC were entitled to question the credibility of the Appellant's defence and the subsequent rejection of this defence could not be shown to have been wrong [45].

Ground (d): Davies J states that the PCC did not err in their approach to sanction. Rule 20(1)(a) of The GDC (Fitness to Practise) Rules 2006 confirm that the GDC are entitled to address the PCC on the registrant's history. Davies J stated that the only two appropriate sanctions were suspension or erasure.

Davies J considered the case of Dr David Kerr Black [2013] HCJAC 39, paragraph 23, which indicates the severity of an allegation of not obtaining professional indemnity insurance.

Davies J concludes that the PCC's decision that only erasure would be "appropriate and proportionate to safeguard patients, was one which cannot be said by an appellate court to have been inappropriate." [52]

The new evidence: The three conditions to adduce fresh evidence of Ladd v Marshall [1954] were quoted;

“first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” [23]

Davies J commented that the fundamental issue for the Appellant was that he could not show that the new evidence from the patients could not have been obtained with reasonable due diligence for use at the PCC hearing.

Transview Properties v City Site Properties [2009] EWCA Civ 1255, paragraph 22, was also considered. Davies J stated this was "strong authority against admitting fresh evidence on appeal where the inevitable result would be to have to remit for a fresh hearing unless it is imperative to do so in the interests of justice." [31]

The Respondent had appeared before the Medical Practitioners Tribunal ("the MPT") for dishonesty charges arising out of his conduct as a Locum Paediatric Registrar on 13 December 2014, when he was dealing with Patient A.

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